Westman v. Wind River Lumber Co.

• Decision Date: 27 August 1907
• Citation: 50 Or. 137,91 P. 478
• Parties: WESTMAN v. WIND RIVER LUMBER CO.
• Court: Oregon Supreme Court

91 P. 478

50 Or. 137

WESTMAN v. WIND RIVER LUMBER CO.

Supreme Court of Oregon

August 27, 1907

Appeal from Circuit Court, Multnomah County; Alfred F. Sears, Jr. Judge.

Action by David Westman, by Jonas Westman, his guardian ad litem against the Wind River Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a personal injury action. Plaintiff, while engaged as oiler in defendant's sawmill, was caught in the machinery and severely injured. At the time of the accident he was between 15 and 16 years of age. About a year prior to that time he had worked for defendant for a few months piling slabs and wheeling saw dust, but had nothing to do with the machinery in the mill. He applied for re-employment two or three weeks before the accident, and wanted $2 a day, but the foreman told him that defendant was not paying "kids" more than $1.75 a day, and if he was satisfied with such wages he could go to work as oiler, and the engineer would show him where the oil can was. He had never worked as oiler in a mill before, and was given no instructions as to his duties or warned of the dangers incident thereto. He oiled the first afternoon and a short time the next morning, when he was ordered to pile slabs, and continued at that work until about a week before the accident, when he was again put to oiling. In the basement of the mill, and 4 or 5 feet from the ground is a line shaft 2.16 inches in diameter, upon which were several pulleys, from which belts extended to the machinery on the floor above. One of these pulleys was 40 inches in diameter, and 19 1/2 inches from it was a 4-inch belt running from the main shaft to a pulley near the floor above to operate a conveyor for the refuse from the lath saw. A few inches further along, and 3 or 4 feet above the shaft, was a conveyor box, and beyond that, and 38 1/2 inches from the main pulley, was another pulley on the shaft. A short distance above the main shaft was a tightener frame, with a pulley 20 inches in diameter, used for tightening the belt leading from the main pulley to a bolter saw above. The distance from this tightener frame to the conveyor referred to was about 19 inches. A platform upon which the workman stood when oiling the machinery, and especially the tightener pulley, was 28 1/2 inches in front of the main shaft and about 3 feet from the ground. As originally constructed this platform was made of two planks, each 2 inches in diameter 12 inches wide, and 12 feet long, supported by brackets extending from nearby posts; but the evidence tended to show that at the time of the accident there was but one plank in use and it was unfastened. The oil cup on the tightener pulley was 12 or 14 inches in front of, and about 5 feet 6 inches above, the platform, and almost, if not quite, directly over the main pulley. On the morning of the accident the foreman told plaintiff that the tightener pulley shaft was a new one, and for him to watch and screw down the oil cup whenever it got hot. Plaintiff testified that, to reach the oil cup, he had to stand on his tiptoes on the board referred to support himself by holding with one hand to the tightener frame, which was moving back and forward over a space of 5 or 6 inches, thrust his head and shoulders between the tightener frame and the conveyor, and then reach around an 8-inch projecting timber with the other hand to the oil cup. About 10 o'clock that morning, while the mill was in operation, he had occasion to tighten the oil cup; but for some reason it worked hard, and, while he was standing on the platform, as above stated, exerting himself to screw it down, the platform slipped, precipitating him forward into the belts and pulleys, severely injuring him. He brings this action, by his guardian ad litem, to recover damages for the injury so received, alleging that defendant was negligent in not furnishing him a safe place in which to work, in not protecting, guarding, or fencing the machinery about which he was to work, in not instructing him how to perform his duties with safety, and in not warning him of the dangers incident to his employment. Defendant denied the negligence charged, and as a defense pleaded assumption of risk and contributory negligence. Plaintiff had verdict and judgment, and defendant appeals.

W.D. Fenton, for appellant.

J.M. Long, for respondent.

BEAN C.J. (after stating the facts).

The first assignment of error is based on the admission of testimony tending to show that defendant could have guarded or protected the machinery, about which plaintiff was working at the time of the accident, at slight expense and without...